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New York Vehicle and Traffic Law 1192


The matter at bar is a civil forfeiture proceeding wherein the complainant woman who is claiming authority also happens to be a Suffolk County Attorney seeking the forfeiture of a 1967 Chevrolet owned by the defendant man.

The defendant man was arrested on June 23, 2006 for driving while intoxicated (DWI). He submitted to a blood test after being transported to the Hospital and it was determined that his blood alcohol level was 19%. Prior thereto, on January 11, 1984, the defendant man was convicted of driving while intoxicated (DWAI) in violation of Vehicle and Traffic Law section 1192.2. The said law prohibits any person to operate a motor vehicle while such person has 0.08 alcohol level in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva. Based upon his arrest and prior conviction, his vehicle was seized pursuant to Article IV Chapter 270 of the Suffolk County Code. On October 26, 2006 he pled guilty to driving while intoxicated (DWI) and was sentenced to sixty days incarceration.

Suffolk County Code provides that any property which constitutes the proceeds of an offense, the substituted proceeds of an offense or an instrumentality of an offense shall be seized by any peace officer, acting pursuant to his or her special duties, or police officer may upon probable cause to believe that an offense, as defined in this article, has been committed, and may be forfeited as hereinafter provided.

The seizing agency shall send notification of the seizure to all titled owners, registrants on file with the New York State Department of Motor Vehicles by certified mail, return receipt requested, within five business days of the seizure. Such notification shall inform the recipient that there will be a hearing promptly scheduled before a neutral Magistrate to determine whether probable cause existed for the defendant man’s warrant less arrest, whether the County is likely to succeed on the merits of the forfeiture action, whether retention is necessary to preserve the vehicle from destruction or sale during the pendency of the forfeiture proceeding, and whether any other measures would better protect the County’s interest during the proceeding including, but not limited to issuance of a restraining order prohibiting the sale, transfer, or loss of the vehicle with the imposition of appropriated criminal penalties for violation of said restraining order; taking of a bond; and/or use of an interlock device.

When a hearing is held, the neutral Magistrate shall review the documents supporting the arrest and any other relevant documents and take any testimony to determine whether the seizing agency has sustained its burden of proof. If the seizing agency has met its burden of proof, the neutral Magistrate shall authorize the continued retention of the property by the seizing agency pending a judicial determination of any civil forfeiture action. Nothing herein shall be construed to preclude a party with a legal interest in the seized property from commencing an action or proceeding in a court of competent jurisdiction for its return. The Suffolk County Executive shall designate neutral Magistrates to conduct hearings.

The Court notes that Section 270-25 defines an offense as a violation of New York Vehicle and Traffic Law 1192, Operating a motor vehicle under the influence of alcohol or drugs, Subdivision 2, 3, or 4, or 1192-a, Operating a motor vehicle after having consumed alcohol; under the age of 21; per se, or a violation of New York Navigation Law 49-a, Operation of a vessel while under the influence of alcohol or drugs.

The criminal defendant man was notified to appear for a post seizure hearing on July 3, 2006. On such date he did not appear with counsel and after inquest the Neutral Magistrate determined that Suffolk County was entitled to retain possession of the vehicle.

Pursuant to the foregoing undisputed facts, the complainant woman has cross moved for summary judgment. A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact.

Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue but once a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action. Pursuant to the foregoing undisputed facts, the complainant woman has met its prima facie burden of establishing its entitlement to a judgment as a matter of law within the parameters set forth in the Suffolk County Code and the defendant man has failed to raise any issues of fact which would warrant the denial of such relief. However, by way of motion the defendant man seeks summary judgment and dismissal of the complainant’s complaint averring that the forfeiture sought is excessive compared to the offense committed. In support of the motion, the defendant has proffered an appraisal of the subject vehicle, a 1967 Chevrolet Chevelle which valued the car at $48,000.00. The said appraisal was based solely upon information given by the defendant and does not consider the damage the vehicle sustained at the time the defendant was arrested.

In a related case, the Court of Appeals addressed the issue when the defendant therein contented that the forfeiture of her car as a result of a DWI conviction was excessive. Inasmuch as a punitive forfeiture of an instrumentality of a crime violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the defendant’s offense, the Court of Appeals reject the defendant’s claim that the forfeiture of her car constituted an excessive fine. In determining gross dis-proportionality, the Court of Appeals consider such factors as the seriousness of the offense, the severity of the harm caused and of the potential harm had the defendant not been caught, the relative value of the forfeited property and the maximum punishment to which the defendant could have been subject for the crimes charged and the economic circumstances of the defendant.

On the facts of this case, the County Court concludes that the forfeiture of the defendant’s car was not at all disproportionate to the gravity of her offense. The offense with which she was originally charged — driving while intoxicated — is a very serious crime. Grievous harm to innocent victims could have been caused by the defendant’s driving with a blood alcohol level of .15% while speeding and weaving in and out of lanes, had she not been caught and stopped. Given the gravity of the crime of drunk driving, it is difficult to imagine that forfeiture of an automobile for such crime could ever be excessive.

It is apparent that the facts of the matter at bar are clearly similar to the underlying facts of a related case by the County of Nassau and as such would require the same holding; that is, that the fine of forfeiture is not excessive and a violation of the State and Federal Constitutions as the defendant asserts. Accordingly, his motion for summary judgment and dismissal on such ground is denied.

Recklessness can take away a person’s life and once lost, we can never bring it back. No amount of money or punishment can measure the pain of the people who would be left behind once someone dies. If you want to make sure that you win your DUI action, trust the Nassau County DUI Lawyer or the Nassau County Drunk Driving Attorney to win for you. Stephen Bilkis and Associates can also refer you to a Nassau County Criminal Lawyer together with the Nassau County Drug Crime Attorney if you need one.

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